November 2008 Case Law Reports
Marian Freeman –v- Higher Park Farm CA (Civ Div)
Ms Freeman appealed against a decision that the equestrian centre was not liable under s2(2) of the Animals Act 1971 for injury that she had sustained as a result of falling from a horse. Before the ride, Ms Freeman had been assessed as an experienced rider. According to the evidence given by Higher Park Farm, the horse had a habit of bucking when going into canter, which was not considered to be dangerous. Prior to the accident, the horse had bucked as it was about to go into canter and the ride was stopped. Ms Freeman had confirmed that she wished to carry on.
As the horse went into canter a second time, it gave a few large bucks and Ms Freeman fell off. The Judge had held that the equestrian centre was not liable under s2 as it could not reasonably be expected that the horse would buck in such a way that Ms Freeman would fall and suffer injury. The Judge considered that the relevant characteristic was occasional bucking when going into a canter and concluded that he could not find the injury was likely because of the characteristic of bucking that was not normally found in horses other than the horse in question. The Judge also relied on the fact that, prior to the accident, the horse had never bucked in such a way as to cause the rider to fall off or suffer injury. In any event, the Judge held that the equestrian centre was exempt from liability as Miss Freeman had voluntarily assumed the risk.
The Court of Appeal held that the Judge was required to consider whether bucking was not normally found in horses generally. On the evidence, the Judge was entitled to find that Ms Freeman had failed to establish that bucking was not a normal characteristic of horses generally. The relevant question was whether it was normal for horses generally to buck at particular times and in particular circumstances, including when beginning to canter. There was no evidence that horses generally bucked at particular times or in particular circumstances. It was thus held that the Judge could not be at fault for concluding that Ms Freeman had not discharged the burden of establishing that bucking was not a normal characteristic of horses generally. In any event, the Judge had correctly concluded that the Defendant would be exempt from liability under s5(2) of the Animals Act 1971 by the voluntary assumption of risk by Ms Freeman.
Margaret Davison –v- Serenity Hair and Beauty Salon
The Claimant attended the Defendant beauty salon for a hot stone therapy massage treatment. The therapist placed stones from a water heater onto a table and the Claimant was then asked to lie down on the stones, having undressed. The Claimant claimed that the stones felt hot at first but she became accustomed to the heat. The therapist massaged the Claimant’s arms and legs before removing the stones and asking her to lie on her stomach.
When the Claimant stood up she became aware of a tingling sensation on her back. Upon looking at her back in the mirror she saw several raised and red areas and noted that one was more marked than the other areas and had tiny blisters on the surface. She showed her back to the therapist who said that sometimes people had raised areas where the stones had been. The therapist then applied a cold flannel to the Claimant’s back and apologised.
The Claimant suffered increased pain as she walked home. Upon arrival she saw a large blister on the left side of her back. She took some pain relief and returned to the salon where she showed her back to the therapist again, who offered her an apology and a refund. The Claimant subsequently consulted her GP who confirmed that she had sustained burns.
The Claimant brought an action against the Defendant alleging that the therapist had been negligent in her performance of the hot stone massage. The Defendant disputed liability and argued that the therapist had not been negligent, that the Claimant had to have had particularly sensitive skin, that she had failed to complete a health questionnaire correctly, and that she had admitted that she was sensitive to heat.
The Claimant was left with a scar approximately 4cm in diameter on the left side of her back, between the shoulder blade and the midline. The scar was pale, had the appearance of an old vaccination mark, and was surrounded by an area of skin discolouration which was slightly ridged. Medical evidence suggested that the Claimant would gradually become less self-conscious about the scar within approximately 5 years.
The Judge found that the principle of “res ipsa loquitor”, i.e. the facts speak for themselves, applied. He did not accept that the Claimant had either any sensitivity to heat or had failed to complete the questionnaire properly.
The Claimant recovered £3,750.00 for her injuries and miscellaneous expenses of £113.00.
Grace Sanderson (administratrix of the estate of Mr Sanderson, deceased) –v- Donna Marie Hull
The Defendant appealed against an Order that they were liable for an infection that Ms Hull had contracted whilst working for them. Ms Hull had been employed as a turkey plucker. She was provided with gloves and aprons but a few days later she started to work without gloves. She was subsequently diagnosed as suffering from campylobacter enteritis. She alleged that she had been infected during the course of her employment and that the Defendant had breached their duty by failing to protect her from the risks of infection that were inherent in handling dead poultry.
Experts agreed that the only route by which the bacterium could have entered her body was by her mouth. The Judge at first instance had held that the Defendant had been negligent and had breached several statutory duties, which included a failure to warn the Claimant of the risks of exposure to the bacterium and advise her as to the precautions she should take to minimise the risk of infection. As to causation, the Judge accepted that the Claimant had established the causal link between breaches of duty and injury by showing that the breaches had materially increased the risk of infection.
The Court of Appeal allowed the Defendant’s appeal. They found that in the instant case, the Judge had not properly analysed the facts relating to negligence and causation. The Judge’s difficulty in reaching a conclusion on causation was created by his failure to make crucial findings of fact. If the necessary findings of fact had been made, he would have been able to make a decision on the usual “but for” basis. For example, if he had accepted that, if warned, the Claimant would not have discarded the gloves that were provided, he could then have held that it was unlikely that her hands would have been infected. If findings of that kind had been made, it would have been open to the Judge to hold that, on the balance of probabilities, the Claimant would not have become infected. Therefore the case was not one in which it was impossible for the Claimant to prove causation and the appeal was therefore allowed.
Iris Joan Harrington (widow and personal representative of the estate of James Harrington, deceased) –v- Department for Business, Enterprise and Regulatory Reform [2008] EWHC 2658(QB)
The Claimant widow brought a claim in damages against the Defendant following the death of her husband from malignant mesothelioma at the age of 70. The only known cause of mesothelioma was breathing in asbestos fibres. The deceased had been employed by the National Coal Board in a local colliery as an apprentice bricklayer when he was 19 and had worked there for over 2 years. The Defendant was the statutory successor to the Coal Board.
His widow brought the claim on the basis that the only situation in which her spouse was exposed to asbestos during his working life was during his employment at the colliery. The evidence in support of the argument that the deceased had been exposed to asbestos whilst working for the Coal Board came entirely from statements made by him before his death. The deceased claimed to have worked almost exclusively in a boiler room at the colliery where he had come into constant contact with asbestos. The Defendant argued that it was for the widow to prove her case and that, on analysis, the evidence from the deceased was demonstrated to be unreliable when compared to contemporaneous records and expert evidence.
The question was whether the National Coal Board ought reasonably to have foreseen a risk of pulmonary injury. The risk to be considered was the potential risk to the employee during the course of his employment. Prior to 1960, the risks of contracting mesothelioma as a result of exposure to asbestos were unknown.
The account of what the deceased said he actually did in the boiler room was confusing and difficult to understand. The contemporaneous documentary material demonstrated his evidence to be incorrect. There was no evidence that the deceased was exposed to asbestos and the Court was not satisfied, on the evidence, that the deceased was exposed to significant or substantial amounts of asbestos during the course of his employment. The Defendant had no reason to suppose that an apprentice bricklayer working on the surface of the colliery would ever, during the course of his employment, be exposed to significant or substantial amounts of asbestos. The Defendant therefore owed no duty of care in common law to take steps to protect the deceased from the risks presented by asbestos.
Leon Fulford –v- Chan [2008] Walsall County Court
The Claimant was the front seat driver of a motorcar involved in a rear end shunt by a vehicle driven by the Defendant. Immediately after the accident he suffered pain in his neck and upper back which radiated into the area around the right shoulder. He did not attend hospital or his GP as he believed that the symptoms would resolve. However, three or four days later the symptoms, in particular the neck pain, became worse. The Claimant experienced a lot of pain and stiffness, difficulty turning his head, pain in both shoulder blades when heavy lifting, and disturbed sleep.
Three months after the accident the Claimant’s symptoms had not improved. He attended 8 chiropractic sessions. Eight months after the accident the Claimant still experienced daily neck pain. Twenty-two months after the accident he continued to experience continuous pain, aching and stiffness in his neck which sometimes radiated to the area around his right shoulder. X-rays of his neck indicated that he was suffering from gross degenerative changes. Medical opinion was that the accident had accelerated his previously asymptomatic degenerative symptoms in the cervical spine by three years.
The Claimant was awarded damages of £6,000.00 for a three year acceleration injury to the neck.